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Mashiri v. Ocwen Loan Servicing, LLC

United States District Court, S.D. California

September 15, 2014

FARID MASHIRI, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC., Defendant.

ORDER GRANTING DEFENDANT'S MOTIONS TO COMPEL AND FOR SANCTIONS [55] AND DENYING PLAINTIFF'S MOTIONS TO TERMINATE DEPOSITION AND FOR SANCTIONS [54]. [ECF NOS. 54, 55]

MITCHELL D. DEMBIN, Magistrate Judge.

Before the Court are two Joint Motions. The first presents Plaintiff's Motions to Terminate Plaintiff's Deposition and for an Order Awarding Attorney's Fees and Costs. (ECF No. 54). The second presents Defendant's Motions to Compel Plaintiff to Attend Further Deposition, To Respond to Questions and Produce Documents, and for an Order Awarding Attorney's Fees and Costs. (ECF No. 55). Both were filed on August 21, 2014. As provided below, Defendant's Motions are GRANTED and Plaintiff's Motions are DENIED.

Background

Originally filed in Superior Court, this case was removed to this Court on November 27, 2012. (ECF No. 1). The operative pleading is the First Amended Complaint filed on June 25, 2013. (ECF No. 18). There are fourteen federal and state causes of actions alleged. ( Id. ). In gross summary, Defendant is the current servicer of a mortgage on Plaintiff's home. All of the allegations relate to Defendant's handling of Plaintiff's mortgage including attempts to foreclose, collect the debt and modify the loan. ( Id. ). A more detailed factual summary may be found in the Order Denying Defendant's Motion to Dismiss filed on October 28, 2013. (ECF No. 29).

The instant dispute derives from the deposition of Plaintiff taken on June 25, 2014. Plaintiff seeks an order terminating the deposition asserting that counsel for Defendant asked repetitive questions which served to harass and annoy Plaintiff and presented documents not previously produced in discovery. Counsel for Plaintiff notes that Plaintiff is undergoing treatment for advanced stomach cancer and should not have to be subjected to further questioning. (ECF No. 54).

Defendant, on the other hand, seeks permission to further depose Plaintiff alleging that counsel for Plaintiff obstructed the examination and frequently instructed his client to not answer questions without justification. Defendant also asserts that Plaintiff failed to produce documents and information required at the deposition. (ECF No. 55). Both sides seek costs and fees.

Analysis

The Court has reviewed the competing joint motions, the 185 page deposition transcript and the additional documents submitted in support of each motion. The Court agrees with Defendant that counsel for Plaintiff obstructed the examination, often testified and frequently and improperly instructed his client not to answer questions. The Court also agrees with Defendant that Plaintiff is obligated to produce either a verified copy of voice mail communications allegedly from representatives of Defendant and stored on Plaintiff's mobile telephone or produce a verified transcript of those calls. The Court disagrees with counsel for Plaintiff that counsel for Defendant asked the same questions repeatedly so as to harass and annoy Plaintiff. To the contrary, the questioning by counsel for Plaintiff appears well within the ambit of legitimate examination of a party-opponent, particularly considering that the examination was conducted through an interpreter.

1. Conduct of the Deposition

Rule 30 of the Federal Rules of Civil Procedure governs depositions by oral examination. Rule 30(c)(2) relates to objections and provides, in part:

A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

A review of the deposition transcript reveals multiple objections with instructions not to answer by counsel for Plaintiff. ( See ECF No. 55-5 at 14-60 (using the ECF's page numbering)). Not a single objection that the Court could find was necessary to preserve a privilege, to enforce a court-ordered limitation or to present a motion under Rule 30(d)(3). There were objections based upon privacy, based upon a claim that the question previously had been asked and answered and based upon counsel for Defendant presenting documents to Plaintiff not previously provided in discovery. For a compilation, see the letter from counsel for Defendant to counsel for Plaintiff at ECF No. 55-5 at 62-71. None of those objections justifies an instruction not to answer under Rule 30(c)(2).

Plaintiff's objections based upon privacy concerns are obviated by the existence of a Protective Order issued in this case on August 5, 2014. (ECF No. 47). Consequently, those objections are overruled and Plaintiff must answer.

Plaintiff's objections to questions as "asked and answered" also are overruled. In the context of questioning a party-opponent, particularly through an interpreter, the examining attorney is permitted to attempt to exhaust the deponent's memory on a given topic. One of the ways to do that is to ask differently formulated questions seeking basically the same information. The transcript reflects that counsel for Defendant was using this technique and even explained that to counsel to Plaintiff. ( See ECF No. 55-5 at 25, page 42 of the transcript). If counsel for Plaintiff believed that counsel for Defendant was asking the same question repeatedly in bad faith or to unreasonably annoy, embarrass or oppress Plaintiff, counsel's option was to move to terminate or limit the deposition under Rule 30(d)(3). Plaintiff's current motion to terminate the deposition is untimely for that purpose ...


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